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[2023] ZAECBHC 10
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Minister of Public Works and Infrastructure and Others v NMPS Construction CC and Others (Application to Set Aside) (84/2022) [2023] ZAECBHC 10; 2023 (6) SA 314 (ECB) (30 May 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE LOCAL
DIVISION, BHISHO)
CASE NO: 84/2022
In the matter between
MINISTER
OF PUBLIC WORKS AND
INFRASTRUCTURE
AND TWO OTHERS
Applicants
VS
NMPS
CONSTRUCTION CC AND THIRTY
THREE
OTHERS
Respondents
JUDGMENT: APPLICATION
TO SET ASIDE
LOWE
J
:
INTRODUCTION
1.
It
is unnecessary to deal in any detail with the origin of the principal
dispute between the parties in this matter which is being
litigated
by way of an application to which this is interlocutory.
2.
Put
shortly the founding papers in the main application seek orders
directing the respondents (applicants herein) to implement phase
three of the Eastern Cape School Building Expanded Public Works
Programme (allegedly initiated in favour of the applicants) to
commence within thirty days of the order with monthly progress
reports submitted to the court. I will for convenience then
refer to the parties as they are in the interlocutory application.
3.
During
June 2022 second and third respondents (applicants herein) delivered
and filed answering papers.
4.
On
30 June 2022 the applicants in the main application (respondents
herein) delivered a notice to produce documents referred to
in the
answering affidavit, this being a composite notice in terms of Rule
35(12) and 35(14) of the Uniform Rules, identifying
specific
documents referred to in the answering affidavit to be produced
within five days for their inspection.
5.
In
due course, applicants brought this interlocutory application to set
aside the composite Rule 35(12) and 35(14) notice dated
27 June 2022
directing the respondents to pay the costs thereof.
6.
The
crux of the argument relevant to such setting aside turns upon the
proper meaning to be given to Rule 35(12), Rule 35(13), and
Rule
35(14), properly interpreted in the usual manner.
7.
In
short, applicants contend that:
7.1
the
notice, and the Sub-Rules of Rule 35 referred to do not permit of the
application of any part of Rule 35, save with the prior
direction of
the Court as set out in Rule 35(13);
7.2
in
summary the entire Rule 35 (including Rule 35(27) applies to
applications only insofar as the Court may direct;
7.3
That,
as is common cause, the court has not so directed.
8.
Respondents
contend the contrary insofar as Rule 35(12) is concerned arguing that
this is a self-standing Rule and does not require,
as a trigger
event, the court’s directive in terms of Rule 35(13). It
must be said, however, that respondents conceded
that Rule 35(14)
applies only to action proceedings having regard to the wording of
the Rule contending however, that if Rule 35(12)
was appropriately
used, the additional reference to Rule 35(14) is by the way.
RULE 35
9.
Rule
35 as to Discovery, Inspection and Production of Documents
provides as follows:
“
35(1)
Any party to any action may require any other party thereto, by
notice in writing, to make discovery on oath within 20 days
of all
documents and tape recordings relating to any matter in question in
such action (whether such matter is one arising between
the party
requiring discovery and the party required to make discovery or not)
which are or have at any time been in the possession
or control of
such other party. Such notice shall not, save with the leave of a
judge, be given before the close of pleadings.
(2)
The party required to make discovery shall
within 20 days or within the time stated in any order of
a judge make
discovery of such documents on affidavit in accordance with Form 11
of the First Schedule, specifying separately—
(a)
such
documents and tape recordings in the possession of a party or such
party’s agent other than the documents and tape recordings
mentioned in paragraph
(b)
;
(b)
such
documents and tape recordings in respect of which such party has a
valid objection to produce;
(c)
such
documents and tape recordings which a party or such party’s
agent had, but no longer has possession of at the date of
the
affidavit.
A
document shall be deemed to be sufficiently specified if it is
described as being one of a bundle of documents of a specified
nature, which have been initialled and consecutively numbered by the
deponent. Statements of witnesses taken for purposes of the
proceedings, communications between attorney and client and between
attorney and advocate, pleadings, affidavits and notices in
the
action shall be omitted from the schedules.
(3)
If
any party believes that there are, in addition to documents or tape
recordings disclosed as aforesaid, other documents (including
copies
thereof) or tape recordings which may be relevant to any matter in
question in the possession of any party thereto, the
former may give
notice to the latter requiring such party to make the same available
for inspection in accordance with subrule
(6), or to state on oath
within 10 days that such documents or tape recordings are not in such
party’s possession, in which
event the party making the
disclosure shall state their whereabouts, if known.
(4)
A document or tape recording not disclosed as aforesaid may not, save
with the leave of the court
granted on such terms as it may deem
appropriate, be used for any purpose at the trial by the party who
was obliged but failed
to disclose it, provided that any other party
may use such document or tape recording.
(5)
(a)
Where
the Fund, as defined in the Road Accident Fund Act,
1996
(
Act
No. 56 of 1996
),
as
amended, is a party to any action by virtue of the provisions of the
said Act, any party to the action may obtain discovery in
the manner
provided in paragraph
(d)
of
this subrule against the driver or owner or short term insurer of the
vehicle or employer of the driver of the vehicle,
referred to in the
said Act.
(b)
The
provisions of paragraph (a) shall apply mutatis mutandis to the
driver or owner or short term insurer of the vehicle or employer
of
the driver of a vehicle referred to in section 21 of the said Act.
(c)
Where
the plaintiff sues as a cessionary, the defendant shall
mutatis
mutandis
have
the same rights under this rule against the cedent.
(d)
The
party requiring discovery in terms of paragraph
(a)
,
(b)
or
(c)
shall
do so by notice in accordance with Form 12 of the First Schedule.
(6)
Any party
may at any time by notice in accordance with Form 13 of the First
Schedule require any party who has made discovery to
make available
for inspection any documents or tape recordings disclosed in terms of
subrules (2) and (3). Such notice shall require
the party to whom
notice is given to deliver within five days, to the party requesting
discovery, a notice in accordance with Form
14 of the First Schedule,
stating a time within five days from the delivery of such latter
notice when documents or tape recordings
may be inspected at the
office of such party’s attorney or, if such party is not
represented by an attorney, at some convenient
place mentioned in the
notice, or in the case of bankers’ books or other books of
account or books in constant use for the
purposes of any trade,
business or undertaking, at their usual place of custody. The party
receiving such last-named notice shall
be entitled at the time
therein stated, and for a period of five days thereafter, during
normal business hours and on any one or
more of such days, to inspect
such documents or tape recordings and to take copies or
transcriptions thereof. A party’s failure
to produce any such
document or tape recording for inspection shall preclude such party
from using it at the trial, save where
the court on good cause shown
allows otherwise.
(7)
If any party fails to give discovery as aforesaid or, having been
served with a notice under subrule
(6), omits to give notice of a
time for inspection as aforesaid or fails to give inspection as
required by that subrule, the party
desiring discovery or inspection
may apply to a court, which may order compliance with this rule and,
failing such compliance,
may dismiss the claim or strike out the
defence.
(8)
Any party to an action may after the close
of pleadings give notice to any other party to specify in
writing
particulars of dates and parties of or to any document or tape
recording intended to be used at the trial of the action
on behalf of
the party to whom notice is given. The party receiving such notice
shall not less than 15 days before the date of
trial deliver a
notice—
(a)
specifying
the dates of and parties to and the general nature of any such
document or tape recording which is in such party’s
possession;
or
(b)
specifying
such particulars as the party may have to identify any such document
or tape recording not in such party’s possession,
at the same
time furnishing the name and address of the person in whose
possession such document or tape recording is.
(9)
Any party proposing to prove documents or
tape recordings at a trial may give notice to any other party
requiring him within ten days after the receipt of such notice to
admit that those documents or tape recordings were properly executed
and are what they purported to be. If the party receiving the said
notice does not within the said period so admit, then as against
such
party the party giving the notice shall be entitled to produce the
documents or tape recordings specified at the trial without
proof
other than proof (if it is disputed) that the documents or tape
recordings are the documents or tape recordings referred
to in the
notice and that the notice was duly given. If the party receiving the
notice states that the documents or tape recordings
are not admitted
as aforesaid, they shall be proved by the party giving the notice
before being entitled to use them at the trial,
but the party not
admitting them may be ordered to pay the costs of their proof.
(10)
Any party may give to any other party who has made
discovery of a document or tape recording notice to produce
at the
hearing the original of such document or tape recording, not being a
privileged document or tape recording, in such party’s
possession. Such notice shall be given not less than five days before
the hearing but may, if the court so allows, be given during
the
course of the hearing. If any such notice is so given, the party
giving the same may require the party to whom notice is given
to
produce the said document or tape recording in court and shall be
entitled, without calling any witness, to hand in the said
document,
which shall be receivable in evidence to the same extent as if it had
been produced in evidence by the party to whom
notice is given.
(11)
The court may, during the course of any proceeding, order the
production by any party thereto under oath
of such documents or tape
recordings in such party’s power or control relating to any
matter in question in such proceeding
as the court may deem
appropriate, and the court may deal with such documents or tape
recordings, when produced, as it deems appropriate.
(12)
(
a)
Any party to any proceeding may at any time before
the hearing thereof deliver a notice in accordance with Form 15 in
the
First Schedule to any other party in whose pleadings or
affidavits reference is made to any document or tape recording to —
(i)
produce
such document or tape recording for inspection and to permit the
party requesting production to make a copy or transcription
thereof;
or
(ii)
state
in writing within 10 days whether the party receiving the notice
objects to the production of the document or tape recording
and the
grounds therefor; or
(iii)
state
on oath, within 10 days, that such document or tape recording is not
in such party’s possession and in such event to
state its
whereabouts, if known.
(b)
Any
party failing to comply with the notice referred to in
paragraph
(a)
shall
not, save with the leave of the court, use such document or tape
recording in such proceeding provided that any other
party may use
such document or tape recording.
(13)
The provisions of this rule relating to discovery shall
mutatis
mutandis
apply, in so far as the court may direct, to
applications.
(14)
After appearance to defend has been entered, any party
to any action may, for purposes of pleading, require any
other party
to —
(a)
make
available for inspection within five days a clearly specified
document or tape recording in such party’s possession which
is
relevant to a reasonably anticipated issue in the action and to allow
a copy or transcription to be made thereof; or
(b)
state
in writing within 10 days whether the party receiving the notice
objects to the production of the document or tape recording
and the
grounds therefor; or
(c)
state
on oath, within 10 days, that such document or tape recording is not
in such party’s possession and in such event to
state its
whereabouts, if known.
(15)
For purposes of rules 35 and 38 —
(a)
a
document includes any written, printed or electronic matter, and data
and data messages as defined in the Electronic Communications
and
Transactions Act,
2002
(
Act
No. 25 of 2002
);
and
(b)
a
tape recording includes a sound track, film, magnetic tape, record or
other material on which visual images, sound or other information
can
be recorded or any other form of recording.
10.
It
is also relevant to set out the relevant definitions in Rule 1 as
follows:
“
10.1
Proceedings” is not defined.
10.2
The word “action” is defined to mean “…a
proceeding commenced by summons”.
10.3
The word “application” is defined to mean “…
a proceeding commenced by notice of
motion or other forms of
applications provided for by Rule 6.”
11.
Turning
firstly to Rule 35 itself, it should be noted that the original Rule
30(5) was later repealed and substituted with the current
Rule 30A
dealing with the procedure to be adopted where a party fails to
comply with the Rules or with a request made or notice
given pursuant
thereto.
12.
It
has been emphasized in
Caxton
and CTP Publishers and Printers Ltd and Novus Holdings Ltd
[1]
that
the underlying purpose for production of documents for inspection and
copying or transcribing, as part of the broader discovery
mechanism,
is to assist the parties and the court in discovering the truth and
to promote a just and expeditious determination
of the case.
[2]
13.
As
was pointed out in
Gorfinkel
v Gross, Hendler and Frank
[3]
there are undoubtedly differences between the wording of Rule 35(12)
and the other sub-rules relating to discovery, for example
sub-rule
(1), (3) and (11) of Rule 35. It is, so it was pointed out,
clear that Rule 35 in the sub-rules referred to, specifically
refer
to “
relevance
”
but sub-rule (12) contains no such limitation and is prima facie cast
in terms wider than sub-rule 35(1), (3) and (11).
14.
In
Caxton
(
supra
),
Gorfinkel
(
supra
)
was referred to with approval
[4]
.
The Court said that in order for the production of a document to be
compellable under Rule 35(12) it was necessary that
reference to such
document must be made in the adversaries, pleadings or affidavits.
15.
In
Magnum
Aviation Operations v Chairman National Transport Commission and
Another
[5]
the court, in ordering the applicant to produce documents, to which
reference had been made in the founding affidavits, pointed
out that
the ordinary grammatical meaning of the words in Rule 35(12) was
clear and that is that once reference is made to a document
they must
be produced.
16.
Herein
lies an important issue arising from the provisions of Rule 35
generally. Section 35(1) refers to an action, the further
subsections up to (7) flowing therefrom. Rule 35(8) similarly
applies to an action and 35(9) to a “
trial
”.
Rule 35(11) refers to “
any
proceeding
” not specifying an
action or application. Similarly Rule 35(14) clearly applies to
an action, that word being used
and refers to “
for
the purposes of pleading
”.
Rule 35(13) refers to the provisions of the Rule “
relating
to discovery”.
This
seemingly pointing to Rule 35(1).
17.
Rule
35(12)(a) in referring to “
any
proceedings
” makes it clear in
the remaining words to the introduction of the subsection that this
relates to “
pleadings or
affidavits
” in which reference is
made to any document or tape recording obliging the person receiving
the notice to produce same or
proceed in terms of one or other of the
remaining options in this regard.
18.
While
Rule 35(12)(b) preventing the use of a document not supplied
accordingly (failing to comply with the notice) can also be dealt
with by an application to enforce compliance with the Rule in terms
of Rule 30A.
19.
It
follows from the above, and analysis of the Rule, that the earlier
parts of Rule 35 apply to discovery proceedings, the notice
to be
given only after “
the close of
pleadings
”, save with the leave
of a Judge. It is trite, and was common cause between the
parties, that the discovery process
consequent upon Rule 35(1) is
only applicable in terms of Rule 35(13) “
insofar
as the court may direct, to applications.
”
20.
The
contention by applicants was simply that this covers and similarly
applies to Rule 35(12).
21.
That
Rule 35(12) stands out as quite different from the remaining parts of
Rule 35 lies in the words thereof. This is applicable
to any
time before the “
hearing thereof
”
relating to “
any proceeding
”
and comes into operation at any time that a pleading or affidavit is
filed referring to a document or tape recording.
22.
This
clearly is such as to come before the possibility of any discovery
proceedings referred to in Rule 35(1), being brought into
operation
in the normal course.
23.
Indeed,
in
Gorfinkel
(
supra)
[6]
the
following was stated:
“
As
Rule 35(12) can be applied at any time, ie before the close of
pleadings or before affidavits in a motion have been finalized,
it is
not difficult to conceive of instances where the test for determining
relevance for the purposes of Rule 35(1) cannot be
applied to
documents which a party is called upon to produce under Rule 35(12),
as for example where the issues have not yet become
crystallized.
Having regard to the wide terms in which Rule 35(12) is framed, the
manifest difference in wording between
this subrule and the other
subrules, ie subrules (1), (3) and (11) and the fact that a notice
under Rule 35(12) may be served at
any time, ie not necessarily only
after the close of pleadings or the filing of affidavits by both
sides, the Rule should to my
mind be interpreted as follows: prima
facie there is an obligation on a party who refers to a document in a
pleading or affidavit
to produce it for inspection if called upon to
do so in terms of Rule 35(12).”
24.
The
proper approach to interpretation of the Rules is no different from
that in any other interpretative exercise.
25.
It
must be emphasised, and always remembered, that in the current day,
interpretation of a document, including a statute, requires
careful
regard to context (and the Rules). When a court determines the
nature of the party’s rights and obligations
in a contract it
is involved in an exercise of contractual interpretation. There
is now a settled approach to the interpretation
of contracts,
documents and indeed statutes.
[7]
In that matter the following was said:
“
[18]
Over the last century there have been significant developments in the
law relating to the interpretation of documents, both
in this country
and in others that follow similar rules to our own. It is
unnecessary to add unduly to the burden of annotations
by trawling
through the case law on the construction of documents in order to
trace those developments. The relevant authorities
are collected and
summarised in
Bastian
Financial Services (Pty) Ltd v General Hendrik Schoeman Primary
School.
The
present state of the law can be expressed as follows. Interpretation
is the process of attributing meaning to the words
used in a
document, be it legislation, some other statutory instrument, or
contract, having regard to the context provided by reading
the
particular provision or provisions in the light of the document as a
whole and the circumstances attendant upon its coming
into existence.
Whatever the nature of the document, consideration must be given to
the language used in the light of the ordinary
rules of grammar and
syntax; the context in which the provision appears; the apparent
purpose to which it is directed and the material
known to those
responsible for its production. Where more than one meaning is
possible each possibility must be weighed in the
light of all these
factors.
15
The
process is objective not subjective. A sensible meaning is to be
preferred to one that leads to insensible or unbusinesslike
results
or undermines the apparent purpose of the document. Judges must be
alert to, and guard against, the temptation to substitute
what they
regard as reasonable, sensible or businesslike for the words actually
used. To do so in regard to a statute or statutory
instrument is to
cross the divide between interpretation and legislation. In a
contractual context it is to make a contract for
the parties other
than the one they in fact made. The ‘inevitable point of
departure is the language of the provision itself’,
16
read
in context and having regard to the purpose of the provision and the
background to the preparation and production of
the document.”
26.
As
was emphasised this approach to interpretation requires that from the
outset one considers the context and language together,
with neither
predominating over the other.
27.
In
Chisuse
v Director - General Director of Home Affairs
[8]
(at paragraph 52) the Constitutional Court speaking in the context of
statutory interpretation held that this “
now
settled
”
approach to interpretation, is a “
unitary
”
exercise. This means said the court in
University
of Johannesburg v Auckland Park Theological Seminary and another
[9]
,
that interpretation is to be approached holistically: simultaneously
considering the text, context and purpose. To make it
clear, it
has been explicitly pointed out in cases subsequent to
Endumeni
that context and purpose must be taken into account as a matter of
course whether or not the words used in the contract (or statute)
are
ambiguous.
[10]
28.
In
Cool
Ideas 1186 CC v Hubbard
[11]
the court in dealing with the interpretation of statutes said the
following:
“
[28] A
fundamental tenet of statutory interpretation is that the words in a
statute must be given their ordinary grammatical
meaning, unless to
do so would result in an absurdity.
There
are three important interrelated riders to this general principle,
namely:
(a) that
statutory provisions should always be interpreted purposively;
(b) the
relevant statutory provision must be properly contextualised; and
(c) all
statutes must be construed consistently with the Constitution, that
is, where reasonably possible, legislative provisions
ought to be
interpreted to preserve their constitutional validity. This
proviso to the general principle is closely related
to the purposive
approach referred to in (a).”
29.
Independent
Newspapers (Pty) Ltd v Minister for Intelligence Services: In re:
Masetlha v President of the Republic of South Africa
and Another
[12]
the
Constitutional Court underscored the importance of disclosure in
court proceedings pointing out that ordinarily courts would
look
favourably on a claim of a litigant to gain access to documents or
other information reasonably required to assert or protect
a
threatened right or advance cause of action. This is so, it was
said, because Courts take seriously the valid interests
of a litigant
to be placed in a position to present his, her or its case fully
during course of litigation but also weighing the
interests of
justice. This indicates the kind of background to which such an
interpretive exercise in this matter should
be approached.
30.
In
Caxton
(
supra
)
[13]
the court pointed out that the juridical framework within which the
court considering an application to compel production documents
or
tape recordings sought pursuant to Rule 35(12) was captured in
Democratic
Aliance v Mkwebane and Another
[14]
,
the court pointing out that it appeared to be clear the documents in
respect of which there is a direct or indirect reference
in an
affidavit or its annexures that are relevant, and which are not
privileged, and are in possession of that party, must be
produced.
31.
As
was pointed out in
Caxton
(
supra
)
[15]
there are two features that strike one about the provisions of Rule
35(12). Firstly, to invoke these the pleadings or affidavits
must make reference to the document or recording, it being that
reference which triggers the right of the adversary to require
that
document or tape recording to be produced for inspection, copying or
transcription, that entitlement being triggered immediately.
Of
course, that document or tape recording must have been referred to in
the pleadings or affidavits and the rational for a party’s
entitlement to see same (referenced in the other party’s
pleadings or affidavits) is that the party cannot ordinarily be
required to answer before they are given the opportunity to inspect
and copy or transcribe such document.
[16]
32.
Further,
as was pointed out in
Moulded
Components and Rotomoulding South Africa (Pty) Ltd v Coucourakis and
Another
[17]
the sanction provided for in Rule 35(12) is quite different in nature
and effect from the kind of sanction envisaged in Rule 30(5)
now
30A. It is a negative sanction, Rule 30A operating differently,
being that if the document is not produced the claim
or defence may
be struck out.
[18]
33.
In
short, unlike the other parts of Rule 35, relating to discovery,
generally, Rule 35(12) “
is
designed to cater for a different set of circumstances
.”
Its provisions are generally deployed to require the production of
documents or tape recordings before the close
of pleadings or the
filing of affidavits.
[19]
34.
This
was further emphasised in
Unilever
plc and Another v Polagric (Pty) Ltd
[20]
in which the objective of Rule 35(12) was explained as follows:
“
[A]
defendant or respondent does not have to wait until the pleadings
have been closed or opposing affidavits have been delivered
before
exercising his right under Rule 35(12): he may do so at any
time before the hearing of the matter. It follows
that he may
do so before discovery what his defence is, or even before he knows
what his defence, if any, is going to be.
He is entitled to
have the documents produced “for the specific purpose of
considering his position”.”
35.
It
bears repetition that as pointed out in
Caxton
[21]
the ambit of Rule 35(12) is very wide and admits of no serious doubt
that this has extensive reach as pointed out in
Gorfinkel
(
supra
)
[22]
.
36.
In
my view the provisions of Rule 35(13) are clear and unambiguous
relevant to the provisions of discovery in Rule 35 being subject
to
the Court’s direction in application proceedings first being
had. That is an essential prerequisite for a notice
in terms of
Rule 35(1) in applications and in an application to compel compliance
with the notice in terms thereof.
37.
An
analysis of Rule 35 and its interpretation in the manner already
fully referred to above, admits of no doubt whatsoever, in my
view,
that Rule 35(12) is a self-standing subrule in Rule 35, unconnected
with and not requiring the trigger mechanism of a court
order, making
discovery relevant to applications first being had.
38.
It
has an entirely different purpose and in referring to “
proceedings
”
and “
pleadings
and affidavits
”
is entirely clear and self-standing.
39.
The
consequence is, that any party in an application proceeding may
invoke the provisions of Rule 35(12) at any stage of the proceedings,
and particularly immediately after the filing of affidavit in which
reference is made to a document or tape recording, with the
entitlement to seek production of same and to compel its production
in terms of Rule 30(A) if necessary, within the terms of the
Rules.
The purpose being to enable it to assess its position and consider
its defence and how that should be set out in answer
or reply.
40.
Counsel
for respondent referred to a number of authorities which he contended
are to the contrary, I do not agree at all.
In essence the
authorities deal mainly with Rule 35(13) in the context of Rule
35(1). Counsel for both sides could refer
me to only one matter
dealing directly with Rule 35(12) being
Fourie
and two others v Bosch and two others
[23]
.
41.
In
this matter the court dealt with a Rule 30A application to compel
production of documents referred to in a Rule 35(12) notice
on the
absence of an order in terms of Rule 35(13). The court found
shortly that this was not competent referring to
Loretz
v McKenzie
[24]
.
In my view this case was not authority for the proposition considered
and decided.
42.
Further
my view is that the matter appears not to consider all that
interpretational relevant arguments and in context I cannot
agree
therewith.
43.
I
also agree that in context the Rule 35(14) issue, though clearly not
applicable to the notice, not such as to disturb substantial
success.
44.
In
the result, the application to set aside must fail with costs.
ORDER
45.
The
following order is made:
1.
The
application to set aside is dismissed.
2.
Applicants
in the application to set aside are jointly and severally, the one
paying the other to be absolved to pay first to thirty
fourth
respondents’ costs of the interlocutory application.
M.J. LOWE
JUDGE OF THE HIGH
COURT
Appearing
on behalf of the Applicants:
Adv.
Poswa,
Instructed
by
State
Attorney, East London
Appearing
on behalf of the Respondents:
Adv.
Mapoma S.C.,
Instructed
by
Tyopo
Attorneys.
Date heard: 18 May 2023.
Date delivered: 30 May
2023.
[1]
[2022]
2 All SA 299
(SCA) (9 March 2022) I was not referred to this case
during argument.
[2]
Santam
Ltd and Others v Segal
2010 (2) SA 160
(N) at 162E – F;
MV
Alina II, Transnet Ltd v MV Alina II
2013 (6) SA 556
(WWC) at 563 F – G.
[3]
1987 (3) SA 766
(C) at 773G – J.
[4]
[27].
[5]
1984 (2) SA 398 (W).
[6]
At 774E – H.
[7]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593 (SCA).
[8]
2020 (6) SA 14 (CC).
[9]
2021 ZACC 13
at
[65]
.
[10]
Novartis
SA (Pty) Ltd v Maphil Trading (Pty) Ltd
2016 (1) SA 518 (SCA).
[11]
2014 (4) SA 474 (CC).
[12]
2008 (5) SA 31
(CC) at para [25].
[13]
[32].
[14]
2021 (3) SA 403
(SCA) at [41].
[15]
[15], [16] and [17].
[16]
Protea Assurance Company Ltd and Another v Waverley Agency CC and
Others
1994 (3) SA 247
(C) at 249B.
[17]
1979 (2) SA 457 (W) at 459F – 460A.
[18]
Of course as pointed out Rule 30(5) has been replaced by Rule 30(A).
[19]
Caxton
(
supra
)
(26).
[20]
2001 (2) SA 329
(C) at 336 G – J.
[21]
Para [27].
[22]
…773 G – J.
[23]
56027/2020:
17 August 2021, Gauteng High Court per Mabuse J.
[24]
1999(2) SA 72 TPA at 74F – G.